Tribunal dismisses “vexatious” claim against SEG

Save Ecclesbourne Glen has won an important victory at the Information Tribunal in its long-running battle for the release of reports which could throw light on the connection between unauthorised works in Rocklands Caravan Park and the landslip which occurred in the area of Ecclesbourne Glen immediately below the caravan site. Nick Terdre reports.

In April the Information Tribunal overturned a decision by the Information Commissioner’s Office to uphold Hastings Borough Council’s refusal to consider a Freedom of Information(FOI) request from the Save Ecclesbourne Glen group for a list of reports on the grounds that it was vexatious.

It ruled that the request was not vexatious and that the council must supply the list within 35 days or present valid reasons for not doing so. It has supplied a list but SEG still believes there are other reports whose existence the council has not acknowledged.

However, it welcomed the tribunal’s ruling, not least because of the precedent it would have set if upheld. “We feared that if the ICO decision was left to stand then HBC would use it as a carte blanche reason to refuse all further requests for information concerning Rocklands and the Glen,” SEG spokesperson Chris Hurrell told HOT.

“It would also set a dangerous precedent that HBC would use against other parties trying to obtain information.”

Trying to get a complete list has obliged SEG to repeat its requests when it considers the reply from the council has not been accurate or wholly truthful. The repetition is what the council claimed to be vexatious.

Long trail

The trail leading up to the Information Tribunal’s decision goes back many years to the landslip which caused Ecclesbourne Glen to be closed between 2014 and 2021. In SEG’s view, there are grounds to believe that the landslip was at least partly caused by unauthorised developments in Rocklands – this is supported by the second report commissioned by HBC from geotechnical specialist Coffey and which the council made available to SEG in an edited form. It acknowledges that man-made factors such as terracing, roads, tree clearances and changes to drainage were factors in the landslip.

For a number of reasons SEG became aware that Coffey had produced other reports on the matter – through references made in FOI requests to other bodies, and in ICO decision notices, and from Coffey’s own referencing system, for example – and in early 2017 put in an FoI request for a complete list of reports relating to the landslip.

This was ignored, but when a second FOI request was made in late 2017 HBC belatedly released a list of just five reports in July 2018. That this list was incomplete was confirmed by a new list of reports released following the tribunal decision which shows that a further 10 reports existed at the time of the 2018 request, Hurrell said.

SEG then attempted to obtain copies of the five reports under FOI. HBC proved to be very obstructive and tried to block the release of each report under FOI regulations, Hurrell said.  SEG took HBC to the ICO following these refusals and in some cases the ICO ruled that HBC must release the reports. This process took a long time and reports were not released until long after being requested. At all times HBC was obstructive and attempted to prevent release of the reports, Hurrell said.

However, there is an obligation under FOI regulations to supply accurate information and a clear reason must be given for any refusal to do so. When HBC failed to do this, SEG decided in April 2020 to make a further FOI request for an up-to-date and complete list of reports as it had become apparent that the list of reports supplied by HBC was incomplete, and many others existed that HBC had not included on the list.

HBC initially refused the request advising that it would not be responding to issues that had previously “been asked and responded to.” However, as it did not cite a refusal exception reason as required by FOI regulations, SEG considered the refusal to be in breach of FOI regulations.

ICO rules allow a public body to refuse to answer requests that have already been made and answered – these are branded vexatious. In this case the council replied that since it had already answered the question, it would not answer it again, on the grounds that it was vexatious.

Letter

This did not come as a complete surprise to SEG as it had already received an unsolicited letter in October 2019 from the council’s chief legal officer stating that requests for information on the landslip and glen would be considered vexatious and refused.

The purpose of the letter was to suppress any further attempts to obtain information, said SEG. It carried little weight under FOI regulations as each information request must be considered on its own merits, but made it very clear that HBC had no intention of releasing information under any circumstances.

FoI rules also allow claimants to request a review of a refusal decision, which SEG did. HBC confirmed the refusal, advising that it would not revisit requests that had already been dealt with in the past. It referred to a “comprehensive list” of reports which it said it had already been provided to SEG in response to the request made in 2017.

HBC added a further reason, that providing a list of reports would be too time-consuming – requiring  many officers at the council’ to check their records for the past 10 years, and that this would exceed the appropriate cost limits set out in the FoI Act 2000.

SEG refused to accept this ruling. “Our request was not vexatious but a legitimate request to obtain an accurate and up-to-date list of reports,” it said.

SEG took the council’s refusal to the Information Commissioner’s Office (ICO) in August 2020.  During the course of the investigation HBC was unable to demonstrate that producing a list of reports would be time-consuming. It then claimed that not only did it believe that to deal with the request would incur unreasonable costs, but that it was also vexatious.

ICO upholds HBC

While ruling that HBC had breached the FOI and associated Environmental Information Regulations in several respects, and had also breached the 40-day period for providing its response, the ICO upheld HBC’s refusal to release the list of reports on the grounds that the request was “vexatious” – a claim that had not previously been cited in connection with this request. The ICO ruled that HBC was entitled to rely on this exception, and that the public interest rested in favour of maintaining this exception and that no list of reports would be supplied.

This was the ruling that has been overturned by the Information Tribunal.

When asked if the policy expressed in its letter of October 2019 still stood, HBC replied that, “The letter sent by the then Chief Legal Officer back in October [sic] 2019 did not say that HBC would refuse or treat all requests as vexatious/manifestly unreasonable.

“However, it did say that we would no longer respond to FOI/EIR requests on issues regarding Rocklands Caravan Park and Ecclesbourne Glen where a question or subject matter has previously been asked and responded to.”

“Unbelievably difficult”

Commenting generally on its exchanges with HBC, Hurrell said, “It has proven unbelievably difficult to obtain any information from HBC and has required formal Freedom of Information (FOI) requests as HBC are unprepared to voluntarily share any information at all.”

The worst example of this policy was the refusal by HBC of a request by a member of the public to release an unredacted version of Coffey 2, he said. The ICO ruled that the report should be released. HBC appealed the decision to release the report to an Information Tribunal in late 2017 and spent some £32,000 of public money in ensuring the report was not released.

“In the process HBC officers and barrister attempted to vilify SEG supporters by citing alleged examples of ‘harassment to officers and Rocklands’. A police investigation ruled that there had been no harassment – despite this HBC persisted in making these claims. The tribunal did not consider these allegations in their decision.”

SEG have taken several other requests for information to the ICO and are awaiting the results.

In its view, not only are there strong indications that uncontrolled and unauthorised developments at Rocklands have caused harm to the glen, but also HBC officers and councillors have done little to protect the glen and have not carried out a full and proper investigations into the causes of the landslip and mitigating measures that could be taken.

“Any claims by HBC that they believe in open and transparent governance are undermined by this history,” Hurrell said. “HBC maintain a culture of secrecy and their instinct is always to obstruct and obfuscate rather than engage with public concerns. This is far from open and transparent democratic behaviour as claimed by HBC and professed on the Labour party local election manifesto.”

The manifesto states: “…we believe – in a culture of co-operation, openness, fairness, and transparency in all [the Party] does, enabling local people to hold us to account and other agencies to work with us…”

The practice is otherwise, Hurrell said.

Also in: Local Government

« ESCC becomes a hung council
Whistleblower reveals “cover-up” over  councillor complaint »